INCLUDED OFFENSES - GENERIC

INCLUDED OFFENSES - GENERIC If and only if you find the defendant not guilty of (charged offense), or you are unable to reach a unanimous verdict as to this offense, then you must consider whether the defendant is guilty or not guilty of the included offense of (included offense). A person commits the offense of (included offense) if he/she (track statutory language). There are (number) material elements of this offense, each of which the prosecution must prove beyond a reasonable doubt. These (number) elements are: 1. 2. 3. 4. 5. Commentary See HRS § 701-109(4) and (5). According to State v. Sneed, 68 Haw. 463, 464, 718 P.2d 280, 281 (1986), "[t]he doctrine evolved historically as an aid to the prosecution when there was a failure of proof of all of the elements necessary for conviction of the accusation." "From the defendant's point of view," however, "it provides the jury with an alternative to a guilty verdict on the greater offense." Id., 68 Haw. at 465, 718 P.2d at 281. "[T]he prosecution as well as defendant may request an instruction on a lesser included offense if there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting him of the lesser included offense." State v. Kinnane, 79 Hawai`i 46, 897 P.2d 973 (1995); Sneed, 68 Haw. at 465, 718 P.2d at 282; see also State v. Williams, 6 Haw.App. 17, 708 P.2d 834 (1985) (it is reversible error not to give a lesser included offense instruction to which a defendant is entitled upon timely request therefor). According to HRS § 701-109(5), "[t]he court is not obligated to charge the jury with respect to an included offense unless there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting him of the included offense." State v. Smith, 91 Hawai’i 450, 984 P.2d 1276 (1999). In State v. Ferreira, 8 Haw.App. 1, 791 P.2d 407, 409 (1990), the Intermediate Court of Appeals interpreted this language to require "the giving of included offense instructions over both the prosecution's and the defendant's objections." See also State v. Nakachi, 7 Haw.App. 28, 742 P.2d 388 (1987) (court upheld lesser included offense instruction given over the objection of the defendant). The trial judge must bring all included offense instructions that are supported by the evidence to the attention of the parties. The trial judge must then give each such instruction to the jury unless (1) the prosecution does not request that included instructions be given and (2) the defendant specifically objects to the included offense instructions for tactical reasons. If the prosecution does not make a request and the defendant makes a tactical objection, the trial judge must then exercise his or her discretion as to whether the included offense instructions should be given. State v. Kupau, 76 Hawai`i 387, 879 P.2d 492 (1994). The trial judge’s discretion should be guided by the nature of the evidence presented during the trial, as well as the extent to which the defendant appears to understand the risks involved. For that purpose the trial judge must enter into a colloquy, on the record, directly with the defendant to insure that the defendant understands the effect and potential consequences of waiving the right to have the jury instructed regarding included offenses. State v. Kinnane, 79 Hawai`i 46, 897 P.2d 973. State v. Ito, 85 Hawai`i 44, 936 P.2d 1292 (App. 1997). A court must follow the same procedures where a defendant withdraws an included offense instruction for which there is a rational basis in the evidence, as those required where a defendant objects to an included offense instruction. State v. Ito, 85 Hawai`i 44, 936 P.2d 1292 (App. 1997). In State v. Pinero, 70 Haw. 509, 524, 778 P.2d 704, 714 (1989), the court ruled that "[i]f a lesser-included offense instruction is given, it is customary to tell the jury to consider first the greater offense, and to move on to consideration of the lesser offense only if they have some reasonable doubt as to guilt of the greater offense." See also State v. Horn, 8 Haw.App. 167, 796 P.2d 503 (1990) and State v. Reyes, 5 Haw.App. 651, 706 P.2d 1326 (1985). The jury need not unanimously reject the greater charge in order to consider the lesser included offense, and an instruction requiring this procedure is reversible error. State v. Ferreira, 8 Haw.App. 1, 791 P.2d 407(1990). If there is no rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting him of the included offense, the trial court should not tender a lesser included offense instruction. State v. Moore, 82 Hawai`i 202, 921 P.2d 122 (1996); see also Sneed, 68 Haw. 463, 718 P.2d 280; Williams, 6 Haw.App. 17, 708 P.2d 834; State v. Smith, 91 Hawai’i 450, 984 P.2d 1276 (1999). The test is not the "any support in the evidence no matter how weak, inconclusive or unsatisfactory" standard established for defense instructions in State v. O'Daniel, 62 Haw. 518, 616 P.2d 1383 (1980), but rather the "rational basis" test provided in HRS § 701-109(5). Sneed, 68 Haw. at 464, 718 P.2d at 281; see also Nakachi, 7 Haw.App. at 31, 742 P.2d at 391 ("the issue we face is the same as we would be facing if Nakachi were appealing the denial of [a] post trial motion for judgment of acquittal on the included offense"). Absent a waiver of the statute of limitations, a trial court is not required to read a jury instruction for a time- barred lesser included offense because there is no rational basis to furnish a jury instruction on the lesser included offense. See, e.g., State v. Timoteo, 87 Hawai`i 108, 952 P.2d 865 (1997) (when defendant requested the jury instruction on simple trespass, he effectively waived the statute of limitations and agreed that the jury could convict him of simple trespass, rather than burglary 1°); State v. Torres, 85 Hawai`i 417, 945 P.2d 849 (App. 1997) (there was no rational basis to instruct jury on the time-barred lesser included offense because no lesser was requested or brought to the attention of the parties and therefore no waiver of the statute of limitations was elicited or made). It is not error to refuse to instruct a jury on a lesser included offense if the offense is not a lesser included offense of the offense charged as defined by HRS § 701-109(4). State v. Pukahi, 70 Haw. 456, 776 P.2d 392 (1989); see also Kinnane, 79 Hawai`i 46, 897 P.2d 973; State v. Sugimoto, 62 Haw. 259, 614 P.2d 386 (1980); State v. Doi, 6 Haw.App. 115, 711 P.2d 736 (1985). When a defendant is convicted of an offense and a “lesser” included offense, the court simply dismisses the “lesser” included offense. Tomomitsu v. State, No. 21545, slip op., n.5 (App. Jan. 12, 2000) The following cases are appellate court decisions indicating whether a particular offense is an included offense of another offense. Refer to the greater offense to determine whether an appellate court has ruled upon the question of whether a particular offense is included in a greater offense. CHAPTER 707 MURDER Murder 2°: Murder in the second degree is not a lesser of murder in the first degree, as murder in the first degree requires proof Defendant "intended to murder both victims as part of the same plan," while murder in the second degree is based on Defendant acting with "separate, unrelated states of mind to cause the death of each victim." State v. Briones, 74 Haw. 442, 848 P.2d 966 (1993). Manslaughter: manslaughter as defined by HRS § 707- 702(1)(a) "unquestionably" is a lesser included offense of murder since one cannot commit murder without also having committed manslaughter. State v. Pinero, 70 Haw. 509, 778 P.2d 704 (1989); Whiting v. State, 88 Haw. 356 966 P.2d 1082 (1998). Attempted Robbery: Because attempted murder and attempted robbery have different statutory elements and mens rea requirements, one is not a lesser included offense of the other. State v. Mendonca , 68 Haw. 280, 711 P.2d 731 (1985); see also State v. Ah Choy, 70 Haw. 618, 780 P.2d 1097 (1989). Reckless Endangering 2°: Reckless endangering in the second degree is a lesser included offense of attempted murder. State v. Feliciano , 62 Haw. 637, 618 P.2d 306 (1980); State v. Samonte, 83 Haw. 507, 928 P.2d 1 (1996). MANSLAUGHTER Negligent Homicide: Supreme court rejects "over- literal" reading of HRS § 701-109 4(a) and (c) and holds that negligent homicide is a lesser included offense of manslaughter. State v. Smythe, 72 Haw. 217, 811 P.2d 1100 (1991). Assault 2°: Assault in the second degree is merely one of the lesser included offenses of attempted manslaughter. State v. Horn, 8 Haw.App. 167, 796 P.2d 503 (1990). ASSAULT 1° Attempted Assault 1°: Attempted assault in the first degree is an included offense of assault in the first degree, and thus, a "deficiency" in the indictment does not preclude retrial on attempted assault in the first degree. State v. Malufau, 80 Hawai`i 126, 906 P.2d 612 (1995). Assault 2° and 3°: Assault in the second degree and third degree are lesser included offenses of assault in the first degree. State v. Malufau, 80 Hawai`i 126, 906 P.2d 612 (1995). ASSAULT 2° Assault 3°: Assault in the second degree under HRS § 707- 712(1)(a) necessarily includes the lesser offense of assault in the third degree under HRS § 707-712. State v. Ito, 85 Hawai`i 44, 936 P.2d 1292 (App. 1997); State v. Kupau, 76 Hawai`i 387, 879 P.2d 492 (1994). Assault 3°: Assault in the third degree is not a lesser included offense of assault in the second degree, § 707- 711(c) because of the requirement that the offense be committed against a correctional worker. State v. Tupuola, 68 Haw. 276, 711 P.2d 1289 (1985). ASSAULT 3° Harassment: Harassment is not a lesser included offense of assault in the third degree. State v. Kupau, 63 Haw. 1, 620 P.2d 250 (1980). ASSAULT AGAINST A POLICE OFFICER Assault 3°: Assault in the third degree is a lesser included offense of assault against a police officer. State v. Elliott, 77 Hawai`i 309, 884 P.2d 372 (1994). TERRORISTIC THREATENING 1° Terroristic Threatening 2°: "Unquestionably," terroristic threatening in the second degree can be an offense included within terroristic threatening in the first degree. State v. Nakachi, 7 Haw.App. 28, 742 P.2d 388 (1987). Harassment: Harassment is not a lesser included offense of terroristic threatening in the first degree. State v. Burdett, 70 Haw. 85, 762 P.2d 164 (1988). SEXUAL ASSAULT 2° Sexual Assault 4°: Sexual assault in the fourth degree and attempted sexual assault in the fourth degree are included offenses of attempted sexual assault in the second degree. State v. Kinnane, 79 Hawai`i 46, 897 P.2d 973 (1995). Indecent Exposure: Indecent exposure is an included offense of attempted second degree sodomy. State v. Smith, 68 Haw. 304, 712 P.2d 496 (1986). SEXUAL ASSAULT 3° Sexual Assault 4°: Sexual assault in the fourth degree under HRS § 707-733(1)(a) is a lesser included offense of sexual assault in the third degree under HRS § 707- 732(1)(e), as the only difference in the required proof is the latter offense requires "strong compulsion" while the former requires only "compulsion." State v. Caprio , 85 Hawai`i 92, 937 P.2d 933 (App. 1997). Sexual Assault 4°: Sexual assault in the fourth degree as defined by HRS § 707-733(1)(a) is not a lesser included offense of sexual assault in the third degree, HRS § 707- 732(1)(b), because sexual assault in the fourth degree requires proof of an additional fact - compulsion - and it does not involve a less serious injury or less culpable state of mind. State v. Buch, 83 Hawai`i, 308, 926 P.2d 599 (1996). ATTEMPTED EXTORTION 2° Terroristic Threatening 2°: Terroristic threatening in the second degree is not a lesser included offense of attempted extortion in the second degree. State v. Pukahi, 70 Haw. 456, 776 P.2d 392 (1989). CHAPTER 708 BURGLARY Theft: Theft is not a lesser included offense of burglary in the first degree. State v. Alvey, 2 Haw.App. 579, 637 P.2d 780 (1981). Trespass: Criminal trespass in the first degree is a lesser included offense of burglary in the first degree. State v. Williams, 6 Haw.App. 17, 708 P.2d 834 (1985). ROBBERY 1° Robbery 2°: The difference between robbery in the first degree and robbery in the second degree is the absence of a dangerous instrument in the latter. State v. Halemanu, 3 Haw.App. 300, 650 P.2d 587 (1982). State v. Arlt , 9 Haw.App. 263, 833 P.2d 902 (1992) (robbery in the second degree is a lesser of robbery in the first degree, HRS § 708-840(1)(b)(i)). Assault 3°: Assault in the third degree is not an included offense of robbery in the first degree because robbery requires a finding that force was used, whereas assault in the third degree requires a finding of infliction of bodily injury. State v. Doi, 6 Haw.App. 115, 711 P.2d 736 (1985). State v. Arlt, 9 Haw.App. 263, 833 P.2d 902 (1992) (assault in the third degree is not a lesser included offense of robbery in the first degree). Theft and Attempted Theft: Theft and attempted theft, regardless of degree, are included offenses of robbery. State v. Vinge, 81 Hawai`i 309, 916 P.2d 1210 (1996). See also Tomomitsu v. State, No. 21545, slip op., n.5 (App. Jan. 12, 2000). Robbery is simply an aggravated form of theft. Where, on the facts, a defendant may not be convicted of theft, a fortiori he may not be convicted of robbery. State v. Brighter, 62 Haw. 25, 608 P.2d 855 (1980). Receiving Stolen Property: Receiving stolen property is not a lesser included offense of robbery in the first degree. State v. Sugimoto, 62 Haw. 259, 614 P.2d 386 (1980). Burglary 1°: Burglary in the first degree is not an included offense of robbery in the first degree, as it is possible to commit robbery without committing burglary. State v. Vinge, 81 Hawai`i 309, 916 P.2d 1210 (1996). FRAUDULENT USE OF CREDIT CARD Theft 2°: Theft in the second degree is not a lesser included offense of fraudulent use of a credit card. State v. Freeman, 70 Haw. 434, 774 P.2d 888 (1989). CHAPTER 710 INTIMIDATING A WITNESS Terroristic Threatening 1°: Terroristic Threatening is not a lesser included offense of Intimidating a Witness under HRS § 701-109(a) & (c) because of the different mens rea requirements of the two offenses, their different treatment in the legislative scheme, and the end results of the crimes are distinct. State v. Alston , 75 Haw. 517, 865 P.2d 157 (1994). CHAPTER 711 DISORDERLY CONDUCT Harassment: Harassment is not a lesser included offense of disorderly conduct. State v. Woicek, 63 Haw. 548, 632 P.2d 654 (1981). CHAPTER 712 PROMOTING DANGEROUS DRUG 1° Promoting Dangerous Drug 2°: Promoting dangerous drug in the second degree, HRS § 712-1242(1)(b)(i), is a lesser included offense of promoting dangerous drug in the first degree, HRS § 712-1241(1)(a)(i). State v. Wallace, 80 Hawai`i 382, 910 P.2d 695 (1996). Promoting Dangerous Drug 3°: Promoting dangerous drug in the third degree, HRS § 712-1243(1), is a lesser included offense of promoting dangerous drug in the first degree, HRS § 712-1241(1)(a)(i). State v. Wallace, 80 Hawai`i 382, 910 P.2d 695 (1996). PROMOTING DETRIMENTAL DRUG 1° Promoting Detrimental Drug 2°: Although HRS § 712- 1248(l)(d) (distributing marijuana in any amount) is a lesser included offense of HRS § 712-1247(1)(f) (distributing 1 oz. or more of a substance containing marijuana), it was not a lesser included of the offense actually charged, HRS § 712-1247 (1)(h) (selling or bartering marijuana). State v. Rullman, 78 Hawai`i 488, 896 P.2d 944 (App. 1995). PROMOTING PRISON CONTRABAND 1° Promoting Prison Contraband 2°: The offense in HRS § 710- 1023 (promoting prison contraband in the second degree) is a lesser included offense of that in HRS §710-1022 (promoting prison contraband in the first degree) when the charge is based on in-prison possession of marijuana. State v. Hatori, 92 Hawai‘i 217, 990 P.2d 115 (App.1999). CHAPTER 134 FIREARMS Prohibited Ownership or Possession of Firearm or Ammunition: There are no lesser included offenses of HRS § 134-7(b) and therefore the cases may not be remanded for retrial. State v. Sanchez, 82 Hawai`i 517, 923 P.2d 934 (1996). TRAFFIC DUTY UPON STRIKING ATTENDED VEHICLE OR PROPERTY Unattended Property: The offense of violating HRS § 291C15, which involves the duties with respect to collisions with unattended property, is an included offense of HRS § 291C-13 and -14, which involves the duties with respect to collisions with attended property. State v. Gartrell, 9 Haw.App. 156, 828 P.2d 298 (1992). DRIVING WHILE LICENSE IS SUSPENDED Driving Without a License: Since driving without a license is not a lesser included offense of driving while license suspended, the amended complaint charged an additional or different charge from the original complaint and was thus improper. State v. Matautia, 81 Hawai`i 76, 912 P.2d 573 (App. 1996).